Nkirote v Kiunga [2022] KEBPRT 250 (KLR)

Nkirote v Kiunga (Tribunal Case E003 of 2022) [2022] KEBPRT 250 (KLR) (Civ) (27 May 2022) (Ruling)

Neutral citation: [2022] KEBPRT 250 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E003 of 2022

Gakuhi Chege, Vice Chair

May 27, 2022

Between

Doris Nkirote

Applicant

and

Peter Kiunga

Respondent

Ruling

1. The dispute herein relates to alleged harassment of the tenant by the landlord through locking and unlocking of the door to the suit premises. As a result, the tenant filed a reference dated January 18, 2022 seeking to stop the harassment through this tribunal’s order.

2. The tenant simultaneously filed a motion dated January 19, 2022 seeking restraining orders against the landlord from evicting or harassing her in respect of the demised premises on plot no 6530, Meru Makutano. The application is supported by the tenant’s affidavit of January 18, 2022 and the grounds on the face thereof.

3. Interim orders were granted to the tenant on January 21, 2022 pending hearing inter-partes.

4. The application is opposed through the replying affidavit of the landlord sworn on February 15, 2022 wherein it is deposed that the parties entered into a lease agreement on March 1, 2021 which stipulated the terms of their relationship. The agreed monthly rent is Kshs 30,000/- payable on or before 5th day of every month.

5. Clause 16 of the lease agreement stipulates that the landlord may re-enter the premises to recover possession if any part of rent remains unpaid. The tenant had not paid rent from September 2021 to the time of swearing the affidavit as per the schedule marked annexure ‘PK2’.

6. The landlord denies allegations of harassment and deposes that the application is made in bad faith and was a total abuse of court process. The landlord contends that he has been very accommodative to the tenant since the year 2020 when Covid -19 pandemic occurred by allowing her to pay rent in instalments.

7. On January 15, 2022, the landlord exercised his right of re-entry under the contract and took possession of the suit premises in terms of the lease agreement on account of the tenant’s refusal to honour the same.

8. The tenant is accused of coming to court with unclean hands as she has been abdicating her contractual obligations and is disentitled to equitable orders.

9. The landlord contends that the lease agreement was coming to an end and he could not be forced to allow the tenant to continue occupying the premises despite her refusal to pay rent. He therefore seeks for an order that the tenant pays the rent arrears in the sum of Kshs 180,000/- as at February 2022 or provide a payment plan.

10. The application was ordered to proceed by way of written submissions but only the landlord complied.

11. The issues for determination are:-(a)Whether the tenant is entitled to the equitable relief of injunction.(b)Who is liable to pay costs?

12. The principles considered by courts in an application for injunction were long settled in the case of Giella v Cassman Brown & Co Ltd (1973) EA 358 to wit:-(i)An applicant must show a prima facie case with a probability of success.(ii)An injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury.(iii)When the court is in doubt, it will decide the application on the balance of convenience.

13. In this matter, the tenant is accused of coming to court with unclean hands on account of failure to pay rent in the sum of Kshs 180,000/- as at February 2022. This fact has not been controverted by the tenant through a further affidavit.

14. It is the cardinal obligation of every tenant to pay rent as and when the same falls due and payable and for such a tenant to be entitled to an order of injunction, he/she must demonstrate that he/she has fulfilled all obligations under the tenancy contract (see the case of Samuel Kipkori Ngeno & another v Local Authorities Pension Trust (Registered Trustees) & another [2013] eKLR at paragraphs 9 and 12 where it was held as follows:“9. A tenant’s first and main obligation is to pay rent for the landlord has the right to an income from his investment…….12. The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent is undeserving of the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes dues.”

15. I agree with the landlord’s contention that the tenant failed to disclose that she was in huge rent arrears when she rushed to this court and obtainedex-parte orders. As such, the said orders were obtained through material non-disclosure of relevant facts and the same are liable to be discharged in line with the decision in the case of Gabriel Kariuki Gitonga & 2 others v Redken Wells Ltd & 11 others [2021] eKLR.

16. In conclusion therefore, I am not persuaded that the tenant is entitled to the equitable remedy of injunction.

17. As regards costs, the same are in the court’s discretion but they follow the event. I have no reasons to deny the landlord costs of the suit.

18. As the issues in this suit are similar on all forms with those in Meru BPRT No E004/2022 between Stella Kathure v Peter Kiunga (Landlord), the ruling herein shall apply to the said case mutatis mutandis.

19. The reference herein raises the same issues as the application and I am entitled under section 12 (4) of cap301, laws of Kenya to determine the complaint without the necessity of viva voce evidence. The ruling shall therefore apply to the reference.

20. In conclusion therefore, the final orders that commend to me are:-(i)The application dated January 19, 2022 and the reference of even date is hereby dismissed with costs to the landlord.(ii)The interim orders given on January 21, 2022 are hereby discharged/vacated.(iii)The landlord is entitled to use legal means including distress for rent to recover the amount owed by the tenant in rent arrears.(iv)The landlord is awarded costs of Kshs 15,000/- against the tenant.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY 2022. HON GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:Mrs Mutegi for the TenantMiss Weru for the Landlord.